10 November, 2005

Win some, lose some

The Dover, Pa., evolution trial wrapped up last Friday. I must say I was rather disappointed by the whole thing, mostly because the prosecutor was long on invective and short on argument and came across as smarmy rather than informed.

We won't know the verdict on the case until January of 2006, but for Dover the question is moot. Yesterday the citizens of Dover voted out eight of the nine school board members who were up for reelection and elected in their foul Darwinists from the Dover CARES group. But even though it won't have any material effect, the federal court's decision will set precedent. If it rules in favor of the (defunct) school board, it could produce ten, a hundred - nay, a thousand! - Dovers all over the country.

Meanwhile, those cranks in Kansas are apparently getting in on the game early. The Kansas State Board of Education yesterday released a new set of science standards which prompted a great hue and cry across the land (like this Bloomberg story, "Kansas State Board Votes to Teach Intelligent Design in Schools"). The National Academy of Sciences actually wrote them a nasty letter a few weeks back, stating that they are unhappy with their draft standards, which they feel is designed to undermine the theory of evolution. Therefore, they are refusing to allow their copyrighted "National Science Education Standards" to be used by Kansas.* It might seem a bit extreme of them to be bringing the hammer down like that. They seem especially wroth that Kansas has changed the very definition of science. Here's the new text:
Science is a systematic method of continuing investigation that uses observations, hypothesis testing, measurement, experimentation, logical argument and theory building to lead to more adequate explanations of natural phenomena. Science does so while maintaining strict empirical standards and healthy skepticism. Scientific explanations are built on observations, hypotheses, and theories. A hypothesis is a testable statement about the natural world that can be used to build more complex inferences and explanations. A theory is a well-substantiated explanation of some aspect of the natural world that can incorporate observations, inferences, and tested hypotheses.

Scientific explanations must meet certain criteria. Scientific explanations are consistent with experimental and/or observational data and testable by scientists through additional experimentation and/or observation. Scientific explanation must meet criteria that govern the repeatability of observations and experiments. The effect of these criteria is to insure that scientific explanations about the world are open to criticism and that they will be modified or abandoned in favor of new explanations if empirical evidence so warrants. Because all scientific explanations depend on observational and experimental confirmation, all scientific knowledge is, in principle, subject to change as new evidence becomes available. The core theories of science have been subjected to a wide variety of confirmations and have a high degree of reliability within the limits to which they have been tested. In areas where data or understanding is incomplete, new data may lead to changes in current theories or resolve current conflicts. In situations where information is still fragmentary, it is normal for scientific ideas to be incomplete, but this is also where the opportunity for making advances may be greatest. Science has flourished in different regions during different time periods, and in history, diverse cultures have contributed scientific knowledge and technological inventions. Changes in scientific knowledge usually occur as gradual modifications, but the scientific enterprise also experiences periods of rapid advancement. The daily work of science and technology results in incremental advances in understanding the world.
Chilling, isn't it? It's so... um... Yeah. What's wrong with that, exactly? I'm not sure.

The bits on evolution, on the other hand, are unequivocal. From the Life Science standards for 8-12 graders, benchmark 3 (biological evolution):
The student... 3. understands biological evolution is used to explain the earth’s present day biodiversity: the number, variety and variability of organisms.
d. Whether microevolution (change within a species) can be extrapolated to explain macroevolutionary changes (such as new complex organs or body plans and new biochemical systems which appear irreducibly complex) is controversial. These kinds of macroevolutionary explanations generally are not based on direct observations and often reflect historical narratives based on inferences from indirect or circumstantial evidence.
and later:
The student... 7. explains proposed scientific explanations of the origin of life as well as scientific criticisms of those explanations. Some of the scientific criticisms include:
a A lack of empirical evidence for a “primordial soup” or a chemically hospitable pre-biotic atmosphere;
b. The lack of adequate natural explanations for the genetic code, the sequences of genetic information necessary to specify life, the biochemical machinery needed to translate genetic information into functional biosystems, and the formation of proto-cells; and
c. The sudden rather than gradual emergence of organisms near the time that the Earth first became habitable.
This is pretty clearly cribbed from some Discovery Institute pamphlet and represents lunatic ignorance unworthy of a state science standard. And remember, kids: the more lunatic ignorance we have, the closer we get to the Kingdom of God.

* Hedgehog points out this Wired article decrying the use of evil copyright schemes to enforce good sense. Although frankly I doubt the NAS actually had any principles on the subject to compromise; it's only the sensibilities of their lefty fellow-travelers that are offended.


Given that "evil" copyright is still the law of the land, I applaud the NAS for using what little power they have. Copyright, unlike patents, is not merely a matter of getting paid, it is also a matter of retaining control. In fact, from the Constitutional incentive point of view, I think the control aspect of creative works is much more important than the "getting paid" aspect for either creative work or innovative work. People are much less motivated by money than they are by the love of work and creation, but the love of work and creation is much more closely entwined with a desire to have a say over how your work is used for a reasonable amount of time. Personally, I'm much more horrified by the thought of someone stealing my writing without my name than I by the idea of someone figuring out how to make money off of it without giving me some.

The examples cited in the Wired article are all examples of people trying to prevent other people from using their work in a manner that is necessary for effective citation and evidence in further discussion. But if there were a court case and the works in question were subpoena'd, the works in question would have to be brought forth in their full length.So they are essentially discriminating between arguments made in court and arguments made in public, and that's reprehensible. They (Diebold, Scientiology, Disney, NBC and Cisco) were all trying to prevent a truly new  work which was effectively only pointing to the the material they held copyright over in making its own case. Sometimes, by nature of the argument, the "pointer" must consist of the entire object being pointed to. But none of the creators of the new works were attempting to use the cited works for the same purpose the cited works were originally created for. In other words, they were not intending to take advantage of the work and labor already done by the copyright holders so that they (the critics) could do less work. This is why fair use should be more defined in terms of function and less in terms of length.

In this Kansas case, it seems that Kansas wants to have its cake and eat it to. Making academic manuals is hard work and expensive. Kansas fully intends to take advantage of all the NAS work for things it doesn't care about--physics and chemistry. Only when it comes to biology does it want to do something different, and insert that in there. NAS is saying, use the whole thing as we designed it to be used, or don't use it at all. You can't take advantage of our labor and subsidized prices (I'm assuming NAS charges?) if you're going to change our work. That seems akin to a musician saying, you can't use my original tune and just put in your advertising jingle where you want. Use the whole thing or not at all--I worked hard to make it a certain way, and that's the way it's meant to be used. Now I think that's a perogative that expires after some time, and we can debate the appropriate length of time limits on those progatives, but I doubt very much those time limits are remotely in question here.  

Posted by Saheli

Saheli: I think I understand what you're saying, but it's a bit muddy, so I apologize if I am mischaracterizing it and building a straw man. On the one hand, you say that copyright owners should be able to control how their work is used. In your example, musicians should be able to stop someone from remixing their songs. (You twisted the knife by making the remix include an ad jingle, but does you aren't making a case against commercial exploitation, you specifically said that intellectual control is the problem rather than money-making.) So the NAS should be able to control its books.

This "use the whole thing or nothing at all" concept you articulate is a novel and disturbing perversion of copyright, one embedded in the Digital Millennium Copyright Act. If I can figure out how to insert a suspension rear triangle onto my bicycle, I should be able to do that. I should be able to tear down a wall in my architect-designed home (unless there is a larger cultural heritage issue, as with certain landmarks and historic structures). If I can figure out a way to hack Acrobat to make it more useful, I see no reason why that should be prohibited. (Why oh why has the FBI put DRM code into its FOIA form to make it impossible for me to save my request to a disk, even though I can print it out?) In all of these cases, I might subvert or even reverse the intent of the designer. The bicycle designer might passionately hate rear suspension. Too bad. I am not breaking copyright by messing with one copy of her work. Similarly, I should be able to use a textbook however I want, even to teach something that is completely wrong.

There is another issue here. NAS is a public agency. Traditionally, governments have been outside of copyright law. Their work is presumptively in the public domain. Now the NAS does this to Kansas. And a couple major transit agencies have forced a private citizen to stop hosting iPod versions of transit maps. By this same logic, the New York Times could have lost the Pentagon Papers suit not on espionage or national security grounds but because they were violating copyright.

By resorting to censorship, the NAS has pulled a clever political move that also demonstrates disdain for the intelligence of the public. It reveals a lack of faith in the "marketplace of ideas" which, as those nutty Kansans write in their definition of science, is the essence of intelligent discourse.

In other news,  I got my first Kansas quarter today. It is fantastic. It has a lot of smooth unprinted space and a gigantic old bison. I guess John Brown would have been too much to ask for. 

Posted by hedgehog

This is not the first time the NAS has done this (nor the NSTA, which pulled the same move). The whole point of the NAS's National Science Education Standards, though, is for people to borrow from it and adapt it to their needs. What's at work is the NAS exerting control over local decisions. They're saying, "You can make derivative works, but if we don't like it, we're going to come put the kibosh on your whole operation." Fine; they're within their legal rights to do this. But it's at the very least disingenuous of them. And although in this case fair use probably doesn't apply, they crafted the thing as a public resource, which implies that they're giving it up to public ownership. It's definitely NOT cool of them to come take it back later. 

Posted by saurabh

Actually the NAS is not quite a public body, technically, just like the Federal Reserve is not a public body, and actually most transit agencies (like our MBTA in Boston) are not officially public bodies. So they can do things the government can't, like hold copyrights. Similarly the US Postal Service, which for example holds copyrights on all its stamp images. 

Posted by saurabh

You're right about the nominal privatization of these government agencies. But then, the RAND Corp actually wrote the Pentagon Papers. The privatization of public functions should work the other way -- if you work for public money, you act like a public agency. Transparent, democratic, and public-spirited. Yeah, I know, dream on.

About the stamps -- they, like anything that is effectively currency (food stamps, Paris Hilton nude pix), should be protected by counterfeiting law, not copyright. (PS: how many more web hits will this post get thanks to the previous sentence? MANY. Thanks, Paris! Now what's up with all the rioting?) 

Posted by hedgehog

Well in any case, the question is moot: Pat Robertson says Dover is doomed!  

Posted by hedgehog

Hmm. So first of all, I must admit I hadn't considered the NAS as government agency aspect. Silly of me, but I interact with it more as an exclusive club that happens to publish PNAS, so I think of it as being along the same lines as the AAAS. That throws a wrench into the whole thing. I don't think government agencies should generally hold copyright. The whole notion of stealing someone's labor doesn't work when it's public labor.

For the sake of discussion, let us assume that this work was done by, say, the AAAS or ETS or some other large, prviate, nongovernmental organizational of authority.

That said, Hedgehog, I think your second graf is. in fact, a Straw Man. First of all, none of your examples are copyright examples. They are all patent  examples. Patents are almost defined by the improvement they make on a previously existing process--if you haven't improved anything, you don't get a patent. You patent bike designs and algorithms. You don't copyright them. That, in fact, would be one of the principle distinguishing lines between designer and artist. (I don't mean designer as in web designer, I mean designer as in Engineer) A design's final purpose is function, and the creativity that Congress should protect is functional creativity. Improvement is the goal. Copyright, on the other hand, applies to content that is consumed for its own sake. When you read the design of a bike, you are not using the bike. When you read a novel, you have used the novel. If you change the way the novel is used without the author's permission, you are fundamentally affecting the way they are perceived. It's a much more personal relationship. The entire idea of auteurship, already quite entrenched by the time of the Constitution, entitles one to not have one's creativity stolen. If you take someone's poetry and change a little bit here and there without their permission, that's a violation. I think it's intuitive, not novel and disturbing. There's just a point at which your ownership of the work must elapse as it has entered the public sphere. My idea of copyright reform is to make this a reasonable period of time again. Time of creation + X or death + y, whichever comes sooner, say, but making x and y much smaller than they are now. My other idea of copyright reform is using creative commons or some such so that people can make it clear when they don't mind if someone's mashes up their work.

What's the difference between stealing and citing? That's what all that business about pointers was. When you write an article about scientology, or diebold, or whathaveyou, you're not merely substituting their work for yours. You creating something completely different that has to point to the previous thing. The nature of the medium or the argument may require excerpting--maybe even complete excerpting--to make the argument, but that excerpt is functioning as a pointer, not filler.

There's also the question of one and many. If I have a single copy of a textbook that I have purchased, then yes, I can do whatever I want with the physical paper. I can slice it up with a razor blade and bind it between other chapters I like better. I can take my paid for videotape and rip it out of the spool, and make a new home video with it. But if I try to reproduce this new chimeric text, and make copies that's when I'm violating copyright. Your single bike modification example, besides being about patents, also isn't what's going on here. My understanding is that Kansas wants to cut and paste the material with its own material and distribute it on a wide scale, as curriculum standards usually are across a state. Normally the NAS gives away the rights to do that without blinking. But this time it doesn't want to, and with good reason. Its like an author trying to retain creative control over a film adaptation. If she trusts the director to stay true to the project, she may sign it away without blinking. If she doesn't, she may not even sell him an option.

Of course, if it's really been created with public funds in such an opensource style, then perhaps it's simply too late. It really depends on the original terms of the creation.

"And if that's the case, don't ask for His help because he might not be there," he said.

Even I, your irrelevant guest, had to laugh at that, especially with the reported capitalization and lack thereof. Might not be there, huh? Gee, you don't say. . . .

In my coinage news---I just acquired a Lewis&Clark&Jefferson Louisiana Purchase Nickel, and it's quite pretty as well. A bit badly timed of course , but quite pretty.  

Posted by Saheli

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